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Stephan Dreyer / Rike Heyer / Theresa Josephine Seipp / Wolfgang Schulz THE EUROPEAN COMMUNICATION (DIS)ORDER Mapping the Media-Relevant European Legislative Acts and Identification of Dependencies, Interface Areas and Conflicts Working Papers of the Hans-Bredow-Institut | Project Results No. 52
Working Papers of the HBI Stephan Dreyer / Rike Heyer / Theresa Josephine Seipp / Wolfgang Schulz (2020): The European Commu- nication (Dis)Order. Mapping the media-relevant European legislative acts and identification of depend- encies, interface areas and conflicts. Hamburg: Verlag Hans-Bredow-Institut, June 2020 (Working Papers of the HBI No. 52). ISSN 1435-9413 ISBN 978-3-87296-162-4 This work is licensed under a Creative Commons Attribution 4.0 International License CC BY 4.0. Funded by the Minister of State for Culture and the Media in the context of Germany's EU Council Presi- dency 2020. The series "Working Papers of the Hans-Bredow-Institut" [Arbeitspapiere des Hans-Bredow-Instituts] is published at Verlag Hans-Bredow-Institut. The single issues can be downloaded as pdf-files from the In- stitute's website: https://leibniz-hbi.de/en/publications/working_papers Leibniz Institute for Media Research | Hans Bredow Institute (HBI), Hamburg The research perspective of the Leibniz-Institute for Media Research | Hans-Bredow-Institut focuses on media transformation and related structural changes of public communication. With its cross-medial, in- terdisciplinary and independent research, it combines basic research and transfer research, and thus, gen- erates knowledge on issues relevant for politics, commerce and civil society. This kind of media research requires cooperation: international comparative questions are dealt with with partners in many countries. More at www.leibniz-hbi.de. The Authors Dr. Stephan Dreyer is Senior Researcher "Media Law and Media Governance" at the Leibniz Institute for Me- dia Research and co-speaker of the research program "Transformation of Communication". Rike Heyer is a student assistant at the Leibniz Institute for Media Research. Theresa Josephine Seipp is junior researcher at the Leibniz Institute for Media Research. Prof. Dr. Wolfgang Schulz is Director of the Leibniz Institute for Media Research | Hans Bredow Institute in Hamburg, Professor for "Media Law and Public Law including its Theoretical Foundations" at the Faculty of Law at the University of Hamburg and also Director of the Alex- ander von Humboldt Institute for Internet and Society in Berlin Leibniz Institute for Media Research | Hans Bredow Institute (HBI) Rothenbaumchaussee 36 20148 Hamburg / Germany Phone: (+49 40) 45 02 17-0, info@leibniz-hbi.de, www.leibniz-hbi.de, @Bredow_Institut 2
The European Communications (Dis)Order
Contents
1. Background and aims of the study ......................................................................................... 4
2. Relevant legislative acts ........................................................................................................ 4
3. Analytical method: coherence as the focus of consideration ................................................ 5
4. Analysis of the regulatory framework .................................................................................... 8
4.1. Media-specific legal instruments .................................................................................. 9
4.2. Sector-specific legal framework .................................................................................. 10
4.3. General specifications with relevance for the media sector......................................... 17
4.4. Preliminary conclusion: regulatory diversity for information and ...................................
communication services ............................................................................................. 24
5. Comparative analysis from a coherence perspective .......................................................... 24
5.1. General observations .................................................................................................. 24
5.2. Dependencies and restrictions on scopes of application ............................................ 26
5.3. Analysis of the regulatory aims ................................................................................... 30
5.4. Analysis of the territorial scopes of application ........................................................... 31
5.5. The phenomenon and relevance of spill-over effects from non-media areas.............. 35
5.6. Evaluation specifications and culture ......................................................................... 38
5.7. Analysis of Impact Assessments ................................................................................. 39
5.8. Conflicts of objectives and “broken concepts” ............................................................ 45
6. Results and future key challenges ....................................................................................... 50
Literature .................................................................................................................................. 52
Annexes: only available in the German version of the report .................................................... 54
3Working Papers of the HBI 1. Background and aims of the study In advance of Germany’s presidency of the European Council in the second half of 2020, the Leib- niz Institute for Media Research | Hans-Bredow-Institut (HBI) is preparing a number of reports and investigative studies intended to serve as a basis for discussions for the EU Media Conference in July 2020 and the subsequent Focus Sessions. The aim of the HBI investigations is to identify opportunities for medium- and long-term improvement regarding the coherence of the European legislation regulating information and communication. The current legal order is a multi-level system, consisting of standards at EU, German national and federal state level. These are sup- plemented by provisions from international law, and also self-regulatory standards. Given the structural transformations in public and personal information and communication, the current regulations in this area (which derive from path dependencies that in some cases are decades old) are repeatedly the subject of fundamental debates regarding their coherence, congruence, suitability for current requirements and fitness for the future. This report is aimed at providing a systematic mapping of substantive law giving rise to the cur- rent regulations at European level, describing in overview form the body of secondary law rele- vant for the current EU media order from the perspective of audiovisual offerings, and analysing the individual legal instruments from a comparative governance perspective, thereby illustrating dependencies, overlaps, structural differences and possible conflicts. This also includes possi- ble interfacing and spillover effects of legal instruments from other areas, whose provisions are (also) felt in the media area and which thus de facto have an influence on the media order. 2. Relevant legislative acts The identification of relevant legal instruments was conducted via a comprehensive review of the legislation and literature. While the media-specific EU legal framework is well known and pro- vides key directions for the current EU media order, it is overlaid - in a figurative sense - by a wide variety of further sectoral and general legal instruments which also cover companies in the media and communications sectors. Fig. 1 Regulatory tiers in the EU media order, with examples 4
The European Communications (Dis)Order
Identification of the legal instruments to be examined in this regard was initially undertaken via a
review of jurisprudential overview works on media regulation, of commentaries on media-spe-
cific laws and of their references to other legislation, and also on the basis of the practically rel-
evant regulations named by stakeholders in the stakeholder surveys conducted in spring 2020.
As a result, some 61 currently valid and planned EU legal instruments were identified; since many
of these legislative acts are amending or revoking Directives and Regulations, the analyses
touched on a total of 116 legal instruments of the EU (see Annex 1).
3. Analytical method: coherence as the focus of consideration
The coherence of policy activities or legal specifications at the EU level has long been an area of
study in the political sciences and in comparative law. The methods which have been developed
to research policy coherence and convergence or divergence in the law are, however, primarily
aimed at comparing nation-states regarding their transposition of European Law provisions
(Beaumont 2000). The focus is on how similar or dissimilar the transposition of EU law into the
Member States appears, in order to learn something about the degree of EU-internal harmonisa-
tion and, ultimately, about the impact of EU specifications on the creation of standardised na-
tional legal frameworks. However, in this analysis the primary focus is on mapping and comparing
the many legal specifications which are valid in parallel on the same level and which have been
passed by the same legislative body; as a result, the goal of a consistent EU legal framework from
the perspective of media and communication law is placed in the forefront of the analysis. Ho-
mogeneity as a form of expression of coherence is an idea with a long-established history, par-
ticularly in discussions of philosophy and the philosophy of law (Rescher 1973). Key expectations
of coherence in this regard are, on the one hand, the consistency of existing law, and on the other
consistency of comprehensiveness, i.e. of completeness and particularly of inferential unity
(Bracker 2002: 171 ff.). While these requirements can be transferred to bodies of law, they were
and are intended primarily in reference to legal and juridical argumentation. In this study, by con-
trast, the emphasis is primarily on the view of legal specifications as instruments of governance
(Dose 2008). Here, too, it is a condition of a legitimate legal order that individual legal specifica-
tions do not contradict one another (Bertea 2005). This acknowledges the fact that establishing
a coherent legal framework becomes an ever more demanding condition as the individual legal
norms come to serve multiple and various protective purposes (Weinrib 1988; McGarry 2013). Still,
coherence is also seen as a meta-goal of legal frameworks, since incoherence, contradiction,
fragmentation or decoupling may coalesce into “unreadability”, in the sense of an inability to as-
sess the legal framework (Raz 1992).
The Treaty on the Functioning of the European Union sets out a principle of consistency as an
explicit normative goal for the policies and activities of EU organs, in Art. 7 TFEU. The principle,
to be understood as a binding legal instruction, describes the goal of a “consistent realisation of
goals and harmonious resolution of goal conflicts in the interests of ‘substantial coherence’”
(Ruffert 2016; own translation), at least in those areas where the EU acts in a coordinating capac-
ity. This multi-dimensional imperative (Schmidt-Aßmann 2015: 92) also explicitly operates hori-
zontally, i.e. the goal is not only the internal homogeneity of individual legislative acts, but also
5Working Papers of the HBI the absence of conflicts between legislation across different areas: the EU organs must “have regard in their general and in their legislative actions to the meaningful coherence of each indi- vidual act with what is already in place” (Schorkopf 2020: margin number 12; own translation). However, a subjective right to a coherent EU media policy does not follow from Art. 7 TFEU: the principle in the form of a legal imperative is only justiciable to a limited extent, and the EU organs have clear leeway for the exercise of judgement in their decision-making (“margin of apprecia- tion” or ““Beurteilungsfreiraum”, Schorkopf 2020: margin number 14). It is also accepted that co- herence may diminish by pursuing various goals, particularly if legitimate conflicting rights need to be reconciled (Hoebink 2004; Picciotto 2005). The base threshold of giving consideration to this imperative is reached where an EU organ does not even attempt to pass a coherent measure that is consistent with existing specifications. However, until now legal science has devised only insufficient methods to formalise or measure coherence. Legal coherence analyses can be guided by sectoral governance studies, as is occurring to some extent in the political sciences under the concept of “horizontal policy coherence” (Lenschow, Bocquillon & Carafa 2018: 323). Here, the policy activities of an actor are analysed across various sectors, in order to be able to make comprehensive statements as to the substantive homoge- neity of the different measures (Nilsson et al. 2020). This perspective coincides with the jurispru- dential understanding of output-related coherence, insofar as the comparative analysis of mul- tiple legislative acts is concerned. Since individual bodies of law are aimed at one or more partic- ular social issues and stand separately both in time and in terms of their argumentation, they are not specifically matched to one another as a systematic matter of course. Therefore, a task falls to the legislator to enable the individual elements of the legal order “to appear as parts of a con- tradiction-free, ordered whole which is internally coherent” (Basedow 2016: 5, own translation; Bumke 2016). In some instances, this is also described as “horizontal consistency” (Crawford/Car- ruthers 2013: 2). However, this goal has not yet become established as a method with consistent specifications and criteria capable of being operationalised. This may partly be due to the fact that the complexity of parallel, overlapping and convoluted sets of rules has only increased sig- nificantly in recent years, and that cross-sectoral analyses of different legislative acts has not yet become the focus of legal studies - at least, not systematically. Basically, a horizontal coherence analysis is aimed at developing analytical dimensions to exam- ine the legal systematics, the legal points of reference as well as the notions of their scope of application, their regulatory purposes and the chosen regulatory instruments, in order to identify structural commonalities, differences and contradictions, together with possible systematic ar- eas of conflict. With regard to the legislative acts of the EU that are under consideration here, further analytical levels need to be included, looking at the leeway at Member State level on the implementation side, assessing designated cooperation mechanisms at the procedural level and also taking into account any regulatory impact assessments and planned evaluation measures with regard to possible duties for optimisation of the European legislator (cf. Drechsler 2019: 194 f.). 6
The European Communications (Dis)Order
Table 1: Analytic dimensions for the coherence analysis
Substantive dimensions of analysis Procedural dimensions of analysis
► Regulatory purpose(s) ► Leeway for transposition in the Member
States
► Material scope of application, services in- ► Cooperation obligations/mechanisms
cluded and their criteria, areas of overlap and
distinctions
► Territorial scope, particularly the country ► Impact assessment / evaluation
of origin principle, exceptions or target mar-
ket principle
► Regulatory approach
► Governance structure / implementation
In a first step, the legislative acts identified were examined using these analytical dimensions,
with the analysis being conducted to varying depths depending on the centrality of the media
relevance of each act concerned: For Directives and Regulations with a central and direct rele-
vance to media and communications (see Fig. 1 “media-specific regulations”), analyses were un-
dertaken in the dimensions of the material scope of application (and exceptions to that), territo-
rial scope of application, the regulatory purpose(s), the leeway for implementation in the Member
States, the regulatory approaches, the legal principles and the respectively established govern-
ance structure and intended evaluations, together with previously conducted communications-
related impact assessments. For sector-specific regulations that show relevance for the media
either indirectly or in individual sections, the analysis for these areas was undertaken in the di-
mensions of scope of application, the regulatory purpose(s), the legal principles, regulatory ap-
proaches as well as evaluations and impact assessments. For general or media-”remote” Direc-
tives and Regulations, the relevant individual norms were included in the analysis where they have
an impact on information- and communications-relevant services and content. The focus of
these analyses was on the dimensions of scope of application, the regulatory purpose(s), the le-
gal principles and evaluations and impact assessments.
7Working Papers of the HBI
Table 2: Analysis matrix
Analytic dimensions Media-spe- Sector-spe- General
cific rules cific rules rules
Scope of assessment Full legal in- Sections Individual
strument rule(s)
► Regulatory purpose(s), resp. purpose(s) of
protection
► Material scope of application, services in-
cluded and their points of contact, areas of
overlap and delimitations
► Territorial scope of application, particularly
the establishment principle, exceptions or
marketplace principle
► Regulatory approach
► Governance structure / Implementation
► Leeway for implementation in the Member
States
► Cooperation obligations / mechanisms
► Impact Assessment / evaluation
Using this approach, as part of the overall investigation four media-related full analyses, 18 sec-
tor-related partial analyses and 32 short analyses were carried out (see Annex 1). The following
remarks are aggregated statements on the basis of the individual analyses (Section 4) and draw-
ing on the comparative overall view, having regard to the aspects of coherence set out above
(Section 5).
4. Analysis of the regulatory framework
As set out above, the individual sets of rules in EU secondary law can be broadly categorised,
from the perspective of audiovisual providers affected by the regulations, into three regulatory
spheres: at their heart is the specific regulatory framework for audiovisual media services (4.1),
which is framed by the more general sector-specific legal framework for all information and com-
munications services (4.2). Beyond this, there is the general legal framework of the EU with a
variety of specifications from varied areas of the law which regularly also applies to the activities
of media service providers (4.3). Below, the report offers a short inventory of the relevant legal
8The European Communications (Dis)Order
instruments in these three concentric areas, in order to illustrate the substantive bases and the
objects studied in the coherence analysis undertaken in Section 5.
4.1. Media-specific legal instruments
The scope and content of the EU legal instruments in the media sector are characterised by the
legislative competencies of the European organs, as deriving from European primary law, i.e. the
European Treaties: the guarantee of a free internal market for services - which include audiovis-
ual media services - is the starting-point of all media policy measures; additionally, the EU legis-
lators regularly make reference to the protection of human rights relating to information and
communications in Art. 10 (1) ECHR and the (limited) possibilities for their statutory restriction in
Art. 10 (2) ECHR as the grounds for harmonising legal instruments in this area. Since media ser-
vices are also cultural assets, for which the EU has only (limited) supporting competences1, the
focus at the heart of European media policy is on guaranteeing an EU-wide internal market for
audiovisual media and their providers in which an homogenous legal framework is established for
the production and distribution of services and content and where fair competition prevails.
The cornerstone of the media law framework at EU level is the Audiovisual Media Services Di-
rective (AVMSD)2, which primarily sets out specifications in relation to media content. The pur-
poses pursued in it concern harmonisation of specifications in the areas of qualitative and quan-
titative advertising law, protection of human dignity and minors, accessibility, short news reports
of public events, promotion of European works and the independence of regulatory bodies. The
specifications in the Directive are regularly3 not applicable directly, but require transposition into
national law by the individual Member States. To clarify which national law a provider is subject
to, the Directive contains provisions for determining jurisdiction. These are based on the country
of origin principle, which assumes that generally the respective national law of the Member State
in which a provider is established applies. For better agreement and cooperation between the
Member States in enforcing the implemented AVMSD specifications, the Directive makes provi-
sion for the establishment of a European Regulators Group for Audiovisual Media Services
(ERGA). The AVMSD does not contain direct specifications for ensuring media diversity, but the
recitals include basic pronouncements on the value of media pluralism in the audiovisual internal
market.
Alongside the structuring framework of the AVMSD sit individual legislative acts containing legal
provisions regarding specific media content, for instance in the area of the depiction of child
1
Article 167 TFEU; previously Article 151 TEU.
2
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain
provisions laid down by law, regulation or administrative action in Member States concerning the provision of au-
diovisual media services (Audiovisual Media Services Directive), OJ L 95, 15.4.2010, p. 1-24, as amended by Directive
(EU) 2018/1808 of the European Parliament and of the Council of 14 March 2010 on the coordination of certain pro-
visions laid down by law, regulation or administrative action in Member States concerning the provision of audio-
visual media services (Audiovisual Media Services Directive) November 2018 amending Directive 2010/13/EU on the
coordination of certain provisions laid down by law, regulation or administrative action in Member States concern-
ing the provision of audiovisual media services (Audiovisual Media Services Directive) in order to take account of
changing market circumstances, OJ L 303, 28.11.2018, p. 69-92.
3
Exceptionally, individual provisions of the Directive may be directly applicable if they safeguard the legal position
of legal entities and have not been transposed or not fully transposed in a Member State; see ECJ Case 152/84, ECR
1986, pp. 723 f. - "Marshall".
9Working Papers of the HBI
sexual abuse.4 The proposed Regulation on preventing the dissemination of terrorist content
online5 is also part of these content-related specific rules providing special requirements for
dealing with unlawful content.
Further media-specific legal instruments are primarily those establishing funding programmes
for European media productions (particularly the Creative Europe MEDIA Sub-Programme6) and
media-specific exemptions, notably in the area of state aid rules7. However, these do not consti-
tute direct media content-specific rules for media providers.
4.2. Sector-specific legal framework
The EU has closely accompanied the technological, economic and social development of forms
of electronic information and communication on the regulatory side at the latest since the start
of the 1990s, including via the continuous further development of the corresponding legal regu-
latory frameworks. On the one hand, corresponding offerings are continually appearing as forms
of services, which are particularly supported by the European Treaties. Given this background,
sets of rules have come about which have as their subject the provision of electronically provided
or electronically disseminated services, with the e-Commerce Directive at the heart of these.
The ICT-specific legal frameworks in contract law, intellectual property law and consumer law
also belong to this category. On the other hand, electronically disseminated communications
content is reliant on the technical infrastructure which transmits the information in the form of
electric oscillations or bitstreams. Accordingly, the overall legal framework also notably includes
the legislation in telecommunications law, as a primarily sector-specific competition law. Beyond
this, the EU regulatory framework contains content specifications operating partly across differ-
ent services, notably in the area of illegal depictions and expressions.
4.2.1. E-commerce and electronic services law
One of the directives which remains of key relevance in the ICT sector is the e-Commerce Di-
rective, containing fundamental rules for the provision of electronic services. When adopting
this Directive, too, the EU legislators were primarily concerned to create a harmonised area of
law via which a minimum standard for the free provision of in this case (commercial) electronic
services in the digital internal market is to be ensured. The recitals also make reference to the
protection of basic rights relating to information and communications from Art. 10 ECHR, and to
the limits on those freedoms. Areas which the e-Commerce Directive harmonises are the princi-
ple excluding prior authorisation and the possibility of concluding legally valid contracts in dis-
4
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual
abuse, sexual exploitation of children and child pornography and replacing Council Framework Decision
2004/68/JHA, OJ L 335, 17.12.2011, p. 1-14, corrected by OJ L 018, 21.1.2012, p. 7.
5
Proposal for a Regulation of the European Parliament and of the Council on the prevention of the dissemination of
terrorist content online, COM/2018/640 final.
6
Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the
Creative Europe programme (2014-2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No
1041/2009/EC, OJ L 347, 20.12.2013, p. 221-237.
7
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communi-
ties and certain related acts - Protocols - Protocol annexed to the Treaty establishing the European Community -
Protocol on the system of public broadcasting in the Member States, Official Journal No C 340, 10.11.1997, p. 0109,
as last amended by Article 1(4)(b) H, para. 28 Protocol No. 1 to the Treaty of Lisbon of 13.12.07, OJ No. C 340,
10.11.1997, p. 0109. OJ C 306, 17.12.2007, p. 163.
10The European Communications (Dis)Order
tance selling, provider-related information and transparency obligations for commercial commu-
nications and for contracting, issues relating to resolving disputes and to legal protection, as well
as liability privileges in relation to user-provided content in the case of technical intermediary
services. The Directive also provides clarification of applicable national laws, similarly starting
out from the country of origin principle.
The Directive, adopted in 2000, has come under pressure in recent years in respect of more re-
cent forms of services, particularly with regard to the question of the suitability for current re-
quirements of the liability privileges for intermediaries and platforms. Against this background,
the European Commission is planning to modernise the e-Commerce Directive as part of a “Digi-
tal Service Act” (DSA). Current recommendations suggest at best cautious changes to the estab-
lished principles in this area8, while conversely others see the DSA as an opportunity to address
previously overlooked areas of regulation, such as strengthened transparency requirements for
algorithm-based procedures (selection, prioritisation, recommendations etc.), better incorpora-
tion of obligations to safeguard freedom of expression and sharing of information, and more in-
novative forms of handling disputes in the context of content and account deletions by private
providers. As part of the announcement of the “Digital Service Act Package” by the new European
Commission, the plans were described with new and revised rules to improve the functioning of
the internal market for digital services through increasing and harmonising the responsibilities
of online platforms and information service providers and strengthening supervision of the con-
tent policy of the platforms in the European Union. The consultation running in early summer
2020 also cites diversity risks on platforms as an “emerging topic”.
Tax law, too, is facing new challenges in view of cross-border digital services. Classical corpora-
tion tax law always assumes established corporations whose profits are taxed in the place where
the value is created, and consequently company earnings can be assigned to a particular country.
With non-physical services offered EU-wide and with providers from outside the EU, traditional
approaches to taxation are coming up against their limits. The aim of the Proposal for a Digital
Services Tax Directive (DST Directive)9 is to create a chargeable event for revenues from the
provision of digital services, at a rate of 3%. Tax is to be levied on revenues originating from online
display advertising, from multi-sided platforms to arrange services and from the transfer of col-
lected online user data. The place of taxation is deemed to be the location of the end-device used
by the user. The new tax liability is to apply for companies who turn over more than EUR 50 million
within the EU and EUR 750 million worldwide.
4.2.2. Telecommunications law
The European Electronic Communications Code (EECC) to be implemented by 20 December
202010 replaces the package of Directives last amended in 2009 in EU telecommunications law11
8
Cf. Draft Report with recommendations to the Commission on Digital Services Act: Improving the functioning of
the Single Market (2020/2018(INL)), https://www.europarl.europa.eu/doceo/document/IMCO-PR-648474_EN.pdf
9
Proposal for a Council Directive on the common system of digital taxation on revenues resulting from the provision
of certain digital services, COM/2018/0148 final - 2018/073.
10
Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the Euro-
pean Electronic Communications Code (Recast), OJ L 321, 17.12.2018, p. 36-214, corrected by OJ L 334, 27.12.2019,
p. 164.
11
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory
framework for electronic communications networks and services (Framework Directive), OJ L 108, 24.4.2002, pp.
11Working Papers of the HBI
- with the exception of the e-Privacy Directive12 (see below). The aim of both the old and the new
legal framework for telecommunications is harmonising the national legal frameworks for elec-
tronic communications networks and services, associated facilities and services and parts of
end-facilities. Following the full liberalisation of the formerly state-controlled telecommunica-
tions networks, the Directives and Regulations are aimed at improved regulation of the markets
to ensure increased competition, at realising the internal market for electronic communication
and, increasingly, at improved consumer protection and user rights.
The European statutory framework for telecommunications concerns the regulation of elec-
tronic communications networks and services, including specifications on the allocation of fre-
quencies and numbers together with cross-country frequency coordinations, specifications on
rights of way for establishing and expanding telecommunications networks, provisions for net-
work access and for shared use of network components and facilities, provisions on the security
33-50; Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and in-
terconnection of, electronic communications networks and associated facilities (Access Directive), OJ L 108,
24.4.2002, pp. 33-50. Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the
authorisation of electronic communications networks and services (Authorisation Directive), OJ L 108, 24.4.2002,
pp. 21-32, all amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 April 2009 on
access to, and interconnection of, electronic communications networks and associated facilities (Access Di-
rective), OJ L 108, 24.4.2002, pp. 7-20. Directive 2009/140/EC of the European Parliament and of the Council of 25
November 2009 amending Directive 2002/21/EC on a common regulatory framework for electronic communica-
tions networks and services, Directive 2002/19/EC on access to, and interconnection of, electronic communica-
tions networks and associated facilities, and Directive 2002/20/EC on the authorisation of electronic communica-
tions networks and services, OJ L 108, 24.4.2009, p. 21-32. OJ L 337, 18.12.2009, p. 37-69; Directive 2002/22/EC of
the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to elec-
tronic communications networks and services (Universal Service Directive), OJ L 108, 24.4.2002, p. 51-77; amended
by Directive 2009/136/EC of the European Parliament and of the Council of 25 March 2009 on universal service and
users' rights relating to electronic communications networks and services (Universal Service Directive), OJ L 108,
24.4.2002, p. 51-77; amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 March
2009 on universal service and users' rights relating to electronic communications networks and services (Universal
Service Directive), OJ L 108, 24.4.2009, p. 51-77. Directive 2009/136/EC of the European Parliament and of the Coun-
cil of 25 November 2009 amending Directive 2002/22/EC on universal service and users' rights relating to elec-
tronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data
and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on coop-
eration between national authorities responsible for the enforcement of consumer protection laws, OJ L 108,
24.4.2009, p. 51-77. Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November
2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office, OJ L
337, 18.12.2009, p. 1-10, repealed by Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11
December 1971 on the harmonisation of the laws of the Member States relating to electronic communications net-
works and services, OJ L 337, 18.12.2009, p. 1-10. Regulation (EU) 2018/1971 of the European Parliament and of the
Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC)
and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regula-
tion (EC) No 1211/2009, OJ L 321, 17.12.2018, p. 1-35; Regulation (EU) No 531/2012 of the European Parliament and of
the Council of 13 June 2012 on roaming on public mobile communication networks within the Union, OJ L 172,
30.6.2012, p. 10-35, amended by Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May
2017 amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets, OJ L 147, 9.6.2017, p.
1-8; Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the
cost of deploying high-speed electronic communications networks, OJ L 155, 23.5.2014, p. 1-14.
12
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the electronic communications sector (Directive on privacy and elec-
tronic communications), OJ L 201, 31.7.2002, p. 37-47, as amended by Directive 2009/136/EC of the European Par-
liament and of the Council of 25 June 2009 on privacy and electronic communications Directive 2009/22/EC on
universal service and users' rights relating to electronic communications networks and services, Directive
2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communi-
cations sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the
enforcement of consumer protection laws (the Regulation on consumer protection cooperation), OJ L 337,
18.12.2009, p. 11-36.
12The European Communications (Dis)Order
and integrity of networks and services, and specifications on the standardisation and interoper-
ability of networks, services and associated facilities, including digital TV services. To implement
the various provisions, European telecommunications law envisages a series of procedures, in-
cluding the monitoring of dominant telecommunications companies, procedures to analyse and
define relevant markets and procedures for resolving disputes between companies.
The relevance of the statutory framework for telecommunications for the audiovisual sector is
high: while European telecommunications law excludes applicability to transmitted content, pro-
viders are necessarily reliant on infrastructural services and networks to provide an audiovisual
media service, and to offer general information society services. They need a transport layer to
convey their own content to those using it and, where applicable, to receive back requests from
them, and that layer consists of software-based telecommunications services and hardware-
based telecommunications networks. Content-related services and their users are reliant on ac-
cess to and usability of the underlying transport layers and networks as channels for distribution
and, where applicable, feedback channels.
Accordingly, issues and decisions in telecommunications law relating to frequency management,
must-carry provisions, network neutrality, interoperability, specifications on availability and min-
imum quality of networks and services, the unbundling of vertically integrated services and,
lastly, the scope of the intended consumer rights protection show direct and indirect links to the
activities to provide and disseminate information society services and to the options for receiv-
ing and using such services on the side of the user.
In addition to such forms of interlacing where telecommunications regulation influences the pos-
sibility and form of information society service provision, there are also instances of services
which due to their nature may potentially fall directly under the provisions of the telecommuni-
cations law framework (see below).
4.2.3. Contract -and consumer protection-related specifications in the media sector
In addition to the general legislative framework for consumer protection (see below), in recent
years the EU has also adopted legal instruments relating specifically to electronically supplied or
electronically disseminated services.
The Digital Content Directive (DCD)13 adopted in May 2019, to be implemented by 1 July 2021, is
aimed at harmonising the framework under contract law for the provision of digital content or
digital services. Its focus is on ensuring a high level of consumer protection, in order to make
cross-border conclusion of contracts more legally assured and to reduce the higher transaction
costs which have existed to date. As a Directive governing contract law, the specifications here
link to contracts on the basis of which entrepreneurs provide digital content or digital services to
consumers. The decisive aspect is not payment, as the quid pro quo or the remuneration can also
be provided through the making available of personal data. As such, the majority of media offer-
ings and digital platforms fall under the scope of the Directive (see below). The requirements of
the DCD thus become contract-related provisions which these providers too must respect, re-
gardless of the technology used for provision or transmission. This may be software, apps and
13
Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning
contracts for the supply of digital content and digital services, OJ L 136, 22.5.2019, p. 1-27, corrected by OJ L 305,
26.11.2019, p. 62.
13Working Papers of the HBI
content made available by media providers via those means, such as videos, audio files, music,
games or e-publications. In addition, the Directive covers services such as cloud computing,
hosting, social media and software as a service. Under the DCD, digital content is according to
contract if it conforms to the statements of the contract concerning the description, quantity
and quality, functionality, compatibility, interoperability and other features, and is “fit for any par-
ticular purpose for which the consumer requires it”. The burden of proof that digital content or a
digital service is as agreed lies with the provider. On this point, the DCD sets out requirements
which are not always easy to interpret for media services and which differ from the provision of
purely journalistic services. A further relevant circumstance regarding the DCD is the fact that it
is a Directive which follows the approach of so-called maximum harmonisation, i.e. the EU legis-
lators are obligating the Member States to implement the specifications precisely, without the
leeway over transposition of normal Directives, for instance with regard to stricter or more leni-
ent national statutory specifications.
Particularly with a view to freedom of movement within the EU, the Portability Regulation14 was
adopted, aimed at ensuring the citizens can enjoy unhindered access to online content services
EU-wide if they are temporarily residing in a country other than the one where they usually live.
To that end, the relevant providers are obligated to make corresponding access available to their
customers, including from other EU countries, with the same scope of function and without ad-
ditional charges.
Similarly dedicated to consumer protection is the Geo-blocking Regulation15, under which the EU
aims to prevent circumstances where users are unjustly discriminated against when making
online purchases, for instance on the basis of their nationality, their place of residence or their
place of establishment in the EU. Under its provisions, for example, blocking or restricting cus-
tomer access to user interfaces such as internet pages or apps, and discriminatory terms and
conditions or payment demands are not permitted. Web page redirections to country-specific
portals or shops are regularly only permitted with explicit consent, and digital content must be
available EU-wide (particularly software, apps, web hosting); in addition, providers must offer at
least one free means of payment. For services supplied electronically comprising the provision
of copyright-protected works, the Regulation applies only to a limited degree: for instance, it al-
lows providers to operate different service conditions (prices, payment terms, delivery terms) for
content offered via downloads or streaming. Information-related - e.g. journalistic - services not
containing copyright-protected images or works are not covered by this exemption. Here, the
provisions of the Geo-Blocking Regulation continue to apply in principle. Providers of live-
streams and media libraries operated by public broadcasting companies may also freely decide
to what extent they wish to follow the requirements of the Regulation.
Plans and proposals by the EU to establish regulatory framing in the area of algorithm-based de-
cisions generally or specifically to the media, for instance in the form of a General Algorithm Reg-
14
Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability
of online content services in the internal market, OJ L 168, 30.6.2017, p. 1-11.
15
Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjus-
tified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place
of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and
Directive 2009/22/EC, OJ L 60I, 2.3.2018, pp. 1-15.
14The European Communications (Dis)Order
ulation, have not yet found expression in the form of draft Directives or Regulations. These pro-
posals are connected with the current discussions regarding the possibilities and limits of “arti-
ficial intelligence” systems and the associated risks (to fundamental rights), depending on the
domain concerned.16 Given the AI systems already in use, in many cases with media producers,
publishing houses and intermediaries, further developments in this area can have significant im-
pact on media practice and public communication.
4.2.4. Special provisions under competition law
The recent Regulation on promoting fairness and transparency for business users of online in-
termediation services (P2B Regulation)17 is an instrument under which the EU is giving consider-
ation to the major importance of platforms and intermediaries for the visibility and dissemination
of services. With regard to competency, the EU is invoking the contribution to ensuring the
smooth functioning of the EU internal market. The Regulation, taking effect on 21 July 2020, ap-
plies to online intermediation services and online search engines, with the aid of which business
users of the platform offer their products and services to end-consumers. The Regulation sets
out provisions in this area aimed at ensuring transparency, fairness and effective options for
remedy for business users, notably via requirements concerning general terms and conditions as
well as information obligations towards business users, and the disclosure of the criteria for se-
lection and ranking when displaying search results. From the viewpoint of media services provid-
ers, the P2B Regulation is mainly relevant because it obliges the intermediaries to disclose the
basis for their ranking, to make clear possible differentiated treatment and to explain the access
to (platform and user) data. The parameter-related descriptions for this are to be worded in plain
and intelligible language. For intermediary services, in the event of disputes the Regulation pro-
vides rules for the establishment of internal complaints procedures and for the option of out-of-
court dispute resolution; for search engines, these rules do not apply. The specifications of the
P2B Regulation extend into an area of media policy which has long been a subject of debate: the
question of the transparency of selection and ranking logics for intermediaries, in order to ex-
clude intentional or targeted discrimination against particular content or providers, which could
impact negatively on media diversity. In this area, the Regulation introduces – albeit from the per-
spective of contract law and competition law, and not with regard to the individual’s freedom of
information or to media diversity18 – a provision which could establish the corresponding trans-
parency. All the more notable is the fact that the perspective of media diversity did not play a role
of any kind as part of the legislative process.
4.2.5. Specifications regarding intellectual property rights
Through the processing, creation, publication and dissemination of content subject to copyright
and to neighbouring rights, the copyright framework plays a key role in the EU communication
order. The legal framework, comprising a raft of individual measures, enables holders and exploi-
16
See European Commission, White Paper "On Artificial Intelligence - A European approach to excellence and trust"
of 19.2.2020, COM(2020) 65 final, https://ec.europa.eu/info/sites/info/files/commission-white-paper-artificial-in-
telligence-feb2020_de.pdf
17
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and
transparency for business users of online intermediary services, OJ L 186, 11.7.2019, p. 57-79.
18
See Schwartmann/Hermann/Mühlenbeck, “Transparenz bei Medienintermediären”, 2020, p. 95.
15Working Papers of the HBI
ters of intellectual property rights of protected works to exploit exclusivity rights for the com-
mercial licensing of content, specifies the protection periods for such exploitations, and makes
provisions for key limitations to copyright.
The aim of the key 2001 InfoSoc Directive19 was to adapt the law governing intangible assets to
the consequences of digitalisation, online communication and increasing media convergence.
The Directive harmonises the right of reproduction, the right of communication to the public and
the right of distribution in accordance with the WIPO treaties. Further areas of focus were deter-
mining restrictions on copyright and the conditions and scopes if they are introduced by Member
States into national copyright laws. In addition, it set a framework for permitted circumvention
of technical protection measures, with the precise shaping being left to the Member States.
The most recent reform of EU copyright law came about in the Digital Single Market Directive
(DSM Directive)20, which modernises the InfoSoc Directive in a number of areas. The Directive,
adopted in April 2019 in the face of considerable protests (“Save the Internet”), must be imple-
mented into national law by mid-2021. The focus of this Directive is the statutory permission for
text and data mining (TDM), collective licensing for works of visual art in the public domain, es-
tablishing neighbouring rights for press publishers, along with IP-related contract law and the
responsibility of online content-sharing service providers. In this regard, of particular relevance
for public communication are the provisions in Art. 15, which introduces a new related right for
press publishers, and Art. 17, which sets out specifications on licensing obligations and on the
liability of platforms with user-generated content for making copyright-protected online content
accessible.
The aim of the SatCab Directive21 is the harmonisation of national copyright with regard to cross-
border broadcasting via cable or satellite. Through this Directive, the freedom to provide services
guaranteed in the EU Treaty within the entire internal market of EU Member States is intended to
be realised for cross-border broadcasting. To that end, the Directive sets out the corresponding
legal conditions intended to make it easier for satellite and cable network operators to acquire
the necessary broadcasting rights. In addition, the Directive adopts as a standard the country of
origin principle and certain restrictions of the principle of contractual freedom, intended to clar-
ify intellectual property rights and related rights licencing. Despite the specific wording, the new
Online-SatCab Directive22 is not solely limited to online dissemination. The aim of the Directive
19
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10-19, last amended by
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related
rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92-125.
20
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related
rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92-125,
as corrected by OJ L 259, 10.10.2019, p. 86.
21
Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and
rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 248, 6.10.1993, p. 15-
21, amended by Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down
rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting or-
ganisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC,
OJ L 130, 17.5.2019, p. 82-91.
22
Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the ex-
ercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and
retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC, OJ L 130,
17.5.2019, p. 82-91, as corrected by OJ L 296, 15.11.2019, p. 63.
16The European Communications (Dis)Order
is to promote cross-border dissemination of European television and radio programmes, includ-
ing via IP networks. The regulatory subjects which it addresses extend to three main areas,
namely - taking the country of origin principle into account - the online dissemination of certain
types of TV and radio programmes in other EU Member States by the broadcasting companies
themselves, the retransmission of TV and radio programmes from Member States by third parties
(whereby, to simplify the acquisition of rights by network and platform operators, mandatory col-
lective management of rights is applicable) and, lastly, the transmission of programmes using
“direct injection”, for which the principle applies that this is only a single instance of a public com-
munication.
The Collective Rights Management Directive (CRM Directive) 23 is aimed at coordinating national
regulations relating to organisations taking up the activity of collective management of copy-
rights and related rights, the modalities of their internal mode of operation and the supervision
of these organisations. In particular, the Directive sets out requirements of organisations for col-
lective cross-border rights management, which was previously regularly exercised by national
monopolies. For licensees wanting to offer a service EU-wide, it was possible to significantly sim-
plify and shorten the in some cases complex national licensing procedures; this allows for signif-
icantly easier EU market entry for new online music and streaming services.
4.3. General specifications with relevance for the media sector
In addition to the media-specific legal legislative acts, which in part react to current technical
and digital developments, at its “margins” the EU communications order also comprises the gen-
eral specifications in quite different areas of law, which alongside many other areas of life and
situations also find application to media services and activities.
4.3.1. Data protection-related specifications from the GDPR
The General Data Protection Regulation24 is one of the most well-known legal acts of the EU.
From the date of its application, the Regulation sets the legal framework for data protection Eu-
rope-wide and introduces mandatory principles and obligations for data controllers. The protec-
tive purpose of the Regulation is to uphold the fundamental rights and fundamental freedoms of
natural persons, particularly their right to the protection of personal data (Art. 8 (1) Charter of
Fundamental Rights).25 The GDPR’s material scope is drawn conceivably broadly, and includes
“the processing of personal data wholly or partly by automated means and (...) the processing
other than by automated means of personal data which form part of a filing system or are in-
tended to form part of a filing system.” Exempted from the scope of application are purely private
data processing operations. For data processing, the GDPR starts from a principle ban with per-
mit reservation: the controller may only process personal data where he can invoke a specific
legal permission. The controller is subject to high demands when it comes to informing users
23
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management
of copyright and related rights and on the multi-territorial licensing of rights in musical works for online use in the
internal market, OJ L 84, 20.3.2014, p. 72-98.
24
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and and repealing
Directive 95/46/EC (basic data protection regulation), OJ L 119, 4.5.2016, p. 1-88, as corrected by OJ L 314,
22.11.2016, p. 72 and OJ L 127, 23.5.2018, p. 2.
25
For the legal debate on the protected property in the DSGVO see Veil, "Die Datenschutz-Grundverordnung: des Kai-
sers neue Kleider", NVwZ 2018, 686 et seq.
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